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Targeting gays and lesbians:

Part 1

Quotations:

"Amendment 2 classifies homosexuals not to further a proper legislative
end but to make them unequal to everyone else. This Colorado cannot do. A
State cannot so deem a class of persons a stranger to its laws. Amendment 2
violates the Equal Protection Clause..." Justice Kennedy of the U.S.
Supreme Court writing for the majority in the Romer v. Evans case of (1996). 1 [Emphasis by us]

"The people of Colorado have adopted an entirely reasonable provision
which does not even disfavor homosexuals in any substantive sense, but merely
denies them preferential treatment. Amendment 2 is designed to prevent
piecemeal deterioration of the sexual morality favored by a majority of
Coloradans, and is not only an appropriate means to that legitimate end, but a
means that Americans have employed before. Striking it down is an act, not of
judicial judgment, but of political will." Justice Scalia, writing for the
minority. 1

Overview of the case:

Many municipalities in Colorado have passed anti-discrimination ordinances
which prohibit discrimination based on race, religion, gender, etc. in areas of
housing, employment, education, public accommodations, health and welfare
services, etc. Some municipalities went further and included sexual orientation
in their list of protected classifications.

This gave additional protections to every person in the state, whatever their sexual orientation, whether heterosexual, bisexual or homosexual. All were equally protected.

In 1992, Colorado voters approved Amendment 2 to the state
constitution by a narrow margin (54% to 47%). According to the U.S.
Supreme Court decision, it would have prohibited "all legislative, executive,
or judicial action at any level of state or local government designed to protect
the status of persons based on their 'homosexual, lesbian or bisexual
orientation, conduct, practices or relationships'." 2

Some municipalities, civil libertarians, gays and lesbians initiated a
lawsuit, "Romer v. Evans, to have the Amendment declared unconstitutional.
They sought and received a preliminary injunction from the trial court, thus
preventing the Amendment from ever being implemented. The injunction was upheld
by the Colorado Supreme Court. The trial court and the Colorado
Supreme Court agreed that Amendment 2 infringed the fundamental right of
gays and lesbians to participate in the political process. They found that
Amendment 2 had violated the Equal Protection Clause of the Fourteenth
Amendment to the U.S. Constitution. A majority of Justices on the U.S. Supreme Court agreed on
1996-MAY-20, and the Amendment was history. The vote was 6 to 3, with
Justices Scalia, Rehnquist and Thomas dissenting. These were the identical three
judges who dissented in the Lawrence v. Texas case in 2003-JUN.

A number of projects underway in other states, which might have resulted in
similar Propositions and Amendments being passed, were abandoned because of this
ruling.

Anti-discrimination ordinances:

"In early 1991, a group of citizens in Colorado Springs became concerned over the passage of local ordinances
in several Colorado municipalities." 3 Prime examples were
the cities of Aspen, Boulder, and Denver which prohibited discrimination
based on the basis of a person's sexual orientation in employment, housing and
public accommodations. Other items of concern were at the State level. For
example:

Governor's Executive Order No. D0035 (1990-DEC-10) which prohibited
employment discrimination for "all state employees, classified and exempt"
on the basis of sexual orientation.

Colorado Insurance Code, (1992 Supp.) which forbade health
insurance providers from determining insurability and premiums based on an
applicant's, a beneficiary's, or an insured's sexual orientation. 2

Metropolitan State College of Denver prohibits college
sponsored social clubs from discriminating in membership on the basis of
sexual orientation.

Colorado State University has an antidiscrimination policy
which encompasses sexual orientation. 1

Will Perkins and other conservative Christians formed a group called Colorado for Family Values. Their
prime goal was to repeal all
such laws and regulations. The fundamentalist Christian group, Focus on the Family, located in Colorado Springs, CO gave a donation to CFV. Focus was one of five conservative Christian para-church groups represented on the CFV board. 4,5

There were two conflicting interpretations circulating in Colorado about
these ordinances, state laws and executive orders:

Colorado for Family Values and other religious conservatives
described the regulations as granting "minority
status protections to homosexuals, not granted to any other citizens." 3 That is, the regulations gave special privileges to gays
and lesbians that were denied the heterosexual majority, and the bisexual
minority.

Gays, lesbians, the U.S. Supreme Court and others
held an opposing view: that these ordinances and laws protect everyone from
any discrimination that they might suffer because of their sexual orientation.
Specifically, it protects:

Heterosexuals -- the majority of adults who are sexually attracted to members of the opposite
gender,

Homosexuals -- a minority of adults who are attracted to persons of the same gender, and

Bisexuals -- a smaller minority who are attracted to persons of both genders, although not necessarily
to the same degree.

Thus, heterosexuals, homosexuals and bisexuals are all protected to the
same degree.

Since terms such as homosexual, lesbian, gay and bisexual do not appear anywhere in the regulations, it seems that the
interpretation by homosexuals and the courts is correct: homosexuals and
bisexuals were not given any special privileges by these regulations. The
conservative Christians were factually incorrect.

However, Christian groups conducted a masterful
advertising campaign. The author of this essay was in Colorado at during the lead-up to the
Amendment 2 plebiscite and noted that many
people -- of all religious persuasions -- honestly believed that gays and
lesbians were seeking or were being given special privileges in the state.

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Amendment 2:

In 1991-AUG, the CFV, aided by the Fundamentalist Christian National Legal
Foundation, wrote a proposed amendment to the state constitution. It said:

"No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor
any of its agencies, political subdivisions, municipalities or school districts,
shall enact, adopt or enforce any statute, regulation, ordinance or policy
whereby homosexual, lesbian or bisexual orientation, conduct, practices or
relationships shall constitute or otherwise be the basis of or entitle any
person or class of persons to have or claim any minority status, quota
preferences, protected status or claim of discrimination. This Section of the
Constitution shall be in all respects self-executing." 2

It is obvious that the scope of the Amendment -- in the words of the U.S.
Supreme Court :

"...does more than repeal or rescind these provisions. It
prohibits all legislative, executive or judicial action at any level of state or
local government designed to protect the named class, a class we shall refer to
as homosexual persons or gays and lesbians."

Amendment 2 would have:

Repealed all existing municipal and country ordinances, state laws, and
Executive orders, school board policies, library policies, etc. which
protected persons from discrimination on the basis of their sexual orientation.

Repealed any regulations which protected homosexuals or bisexuals. This is
a theoretical possibility, because no such regulations are believed to have existed at that time or
exist today.

Prevented any new regulations from being passed and implemented
that would have protected anyone from discrimination because of their
sexual orientation.

Allowed regulations to be passed and implemented which gave special
privileges to heterosexuals.

References used:

The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.The case's syllabus, majority opinion and dissenting opinion are online at: http://supct.law.cornell.edu/